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Ventyx Pty Ltd v Murray

Ventyx Pty Ltd v Murray

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Case Copied 30 January 2014 27 min read

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[2014] FWC 516 [Note: An appeal pursuant to s.604 (C2014/3132) was lodged against this decision - refer to Full Bench decision dated 29 April 2014 [[2014] FWCFB 2143] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Murray
v
Ventyx Pty Ltd T/A Ventyx an ABB Company
(U2013/2397)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 JANUARY 2014

Application for relief from unfair dismissal - jurisdictional objection - genuine redundancy.

[1] Paul Murray was employed by Ventyx Pty Ltd (Ventyx) as technical project manager (TPM) from January 2012. On 1 July 2013, he was advised that his position was redundant as of 2 July 2013.

[2] The initial issue that must be determined is whether this was a genuine redundancy 1 because if that is the case Mr Murray cannot have been unfairly dismissed and his application must be dismissed.

Background

[3] Ventyx makes computer software and runs teams of individuals who install the software onsite and commission it. Ventyx is involved in a number of projects of varying sizes. Ventyx has offices in about 20 countries. 2

[4] A project may have a project director, project managers including TPM’s. The TPM’s will identify the resources needed, ensure that the project is on track and deal with technical issues. TPM’s can work full time on large projects and for short periods on smaller projects. 3 Not all projects have TPM’s. Staffing profiles on projects are determined by the scope of the project and the agreement of the client.

[5] Mr Murray gave evidence that he expected to be working on the Xstrata project when he arrived in Australia and that did not eventuate. 4 Mr Murray commenced5 working on the SPARQ project which had come on line earlier than the Xstrata project which did not commence until April 2012.

[6] Mr Murray gave evidence that he would not have accepted the role if he had been told about the change of client, project and role from Xstrata to SPARQ. 6 However, Mr Weerasekera, his manager, gave evidence which was supported by an email trail that Mr Murray knew about the SPARQ role prior to signing his contract of employment.7

[7] However, whatever the discussions, Mr Murray accepted an offer of employment which was not limited to a particular project and it is clear, given the nature of the business, that TPM’s could be moved from one project to another.

[8] Mr Murray was told in June 2012 that the SPARQ project may be cancelled and this occurred in July 2012. 8 After that Mr Murray worked on a number of different projects including an overseas project.9

[9] From May 2013, Mr Murray was placed “on the bench”. When staff are between projects, or only partially involved in projects, they are “on the bench” while they are waiting for a position to become available on a new or existing project. These means that he was not allocated to a project and was not billing sufficient hours.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCFB 2143
Decision Date: 30 JANUARY 2014

CaseChat Overview and Summary

The matter of Ventyx Pty Ltd versus Murray was brought before the Fair Work Commission. The central issue was whether the applicant, Ventyx Pty Ltd, was entitled to relief from the consequences of an unfair dismissal of the respondent, Mr Murray. The Commission was tasked with determining whether the dismissal was genuine redundancy or if it constituted an unfair dismissal.

The primary legal issue before the Commission was whether the applicant had demonstrated that the dismissal was for a genuine redundancy. The Commission needed to examine the criteria for a genuine redundancy dismissal, which includes whether the employer genuinely required the position to be abolished. Additionally, the Commission had to assess if the dismissal was conducted in accordance with the procedural requirements set out in the Fair Work Act.

The Commission concluded that the applicant had not discharged the onus of proving that the dismissal was for a genuine redundancy. The evidence provided did not sufficiently demonstrate that the position held by Mr Murray was genuinely redundant. Furthermore, the procedural steps taken by the applicant were deemed inadequate, as they did not comply with the requirements of the Act. As a result, the application for relief from the unfair dismissal was dismissed. The Commission emphasised the importance of meeting the evidentiary burden and adhering to procedural fairness when claiming a genuine redundancy dismissal.

Orders